Plaintiff v First Defendant

2 The defendants have applied for summary judgment on the basis that their defences are so obvious and compelling as to render a trial unnecessary. I would refuse the application. My reasons follow.

3 WorkSafe was established by s 18 of the Accident Compensation Act 1985, is a body corporate, and trades under the name WorkSafe Victoria. WorkSafe is, among other things, the relevant regulator for the purposes of the Act.

4 The Act is concerned with 'dangerous goods' which has the same meaning as it has in the Australian Code for the Transport of Dangerous Goods by Road and Rail ('the Code').[2] The Code divides dangerous goods into various classes, including gases, flammable substances,[3] toxic substances, and infectious substances.

5 Part II of the Act is headed 'Inspectors and enforcement'. Section 11 of the Act empowers WorkSafe to appoint inspectors and the Act confers a number of powers on inspectors. All of the powers conferred on an inspector may be exercised by WorkSafe[4] and an inspector is subject to the directions of WorkSafe.[5] The powers include the power to enter premises (other than places used only for residential purposes);[6] to require the production of documents and answers to questions;[7] and to take samples for analysis.[8] In the case of a fire or explosion resulting in loss of life, personal injury, or property damage, an inspector may make any inquiry concerning the event that he or she considers necessary for the purposes of the Act, and for that purpose he or she may enter any place.[9]

6 An inspector may confirm a provisional direction[10] requiring a person to remedy a contravention;[11] issue a non-disturbance notice to stop the movement of a specified thing or prevent a disturbance of a specified area;[12] and issue a prohibition notice requiring a person to cease carrying on certain activities, including the manufacture, supply or movement of dangerous goods.[13] These powers are predicated on the inspector holding a reasonable belief as to specified matters.

7 In addition, an inspector may issue a direction concerning damaged or spilled goods under s 17K of the Act. As s 17K is the focus of the proceeding, it is convenient to set it out in full:

17K Inspector may issue direction concerning damaged or spilled dangerous goods

(1) This section applies if an inspector believes on reasonable grounds that danger to any person or property exists, or may arise, from any dangerous goods -

(a) that are damaged or spilled; or

(b) that are in a container that is damaged; or

(c) that are in a container that is dislodged from a vehicle, ship or boat.

(2) An inspector may issue a direction to the owner, or the person in possession or control, or who last had possession or control, of the dangerous goods or container -

(a) to render harmless the dangerous goods or container; or

(b) to dispose of, or remove, the spilled dangerous goods and render harmless anything contaminated by them -

by safe means within the period of time specified in the direction.

(3) A person must not, without reasonable excuse, refuse or fail to comply with a direction issued under subsection (2).

Penalty: 500 penalty units for a natural person;

2500 penalty units for a body corporate.

(4) If the inspector believes on reasonable grounds that there is an immediate danger to any person or property, the inspector may take any action that he or she considers necessary for -

(a) the destruction, rendering harmless, disposal or removal of the dangerous goods or container; or

(b) the destruction or rendering harmless of anything contaminated by the spilled dangerous goods.

(5) The inspector may also take any action described in subsection (4) if -

(a) the inspector has issued a direction under subsection (2) in relation to the dangerous goods or container, or any thing contaminated by the dangerous goods, and he or she believes on reasonable grounds that the person to whom the direction was issued -

(i) has failed to comply with the direction; or

(ii) is likely to use unsafe means to render harmless, dispose of or remove the dangerous goods, container or thing -

within the period of time specified in the direction; or

(b) the inspector believes on reasonable grounds that a direction under subsection (2) -

(i) cannot be served on the owner or any other person to whom the direction may be issued; or

(ii) cannot be served on the owner or such a person without a delay which may increase the danger to any person or property that exists or that may arise from the dangerous goods, container or thing; or

(c) the owner of the dangerous goods, container or thing authorises the inspector in writing to destroy, render harmless, dispose of or remove the dangerous goods, container or thing.

(6) If an inspector takes any action under subsection (4) or (5), the Authority may recover the costs of that action -

(a) if the dangerous goods, container or thing was or were present at a place other than a vehicle, ship or boat - from any occupier of the place; or

(b) if the dangerous goods, container or thing was or were present on a vehicle, ship or boat - from the owner of the vehicle, ship or boat.

8 An occupier must not, without reasonable excuse, refuse or fail to provide such assistance as an inspector reasonably requires for the performance of his or her functions.[14]

9 As foreshadowed, the proceeding concerns a large fire at industrial premises in Somerville, Victoria ('the site'). WorkSafe alleges that Danbol Pty Ltd ('Danbol') is the registered proprietor of the site and an occupier for the purposes of the Act.[15] It also alleges that Christopher Baldwin ('Baldwin') is an occupier on the basis that he exercised control or supervision of the site and is the sole director, secretary, and guiding mind of Danbol.

10 WorkSafe alleges that on 30 August 2018, a large fire commenced at the site which caused dangerous goods on the site to be damaged or spilled, and containers holding dangerous goods on the site to be damaged.[16]

11 It also alleges that as at 9 October 2019, 'dangerous goods that were damaged or spilled and/or dangerous goods in containers that were damaged were present at the site'; the defendants were in possession or control of the dangerous goods or containers; and an inspector believed on reasonable grounds 'that danger to people or property existed, or may arise from the damaged containers and/or damaged or spilled dangerous goods present at the site'.[17] WorkSafe alleges that an inspector issued a direction on the defendants under s 17K(2) of the Act ('the direction').[18] The document relied on by WorkSafe as constituting the direction is, omitting formal parts, in the following terms:

I am an inspector appointed by WorkSafe under the Dangerous Goods Act 1985 (Vic) ("DG Act") and the Occupational Health and Safety Act 2004.

Your client, Danbol is the owner of 420 Somerville Road Tottenham in Victoria ("Premises") for the purposes of section 17K(2) of the DG Act.

For the purpose of this letter I rely on the following documents (enclosed):

• The Certificates of Analysis issued by Leeder Analytical (reports numbered L 190257 and L 190258, dated 13 and 18 September 2019) ("Test Results");

• The AMCOSH Pty Ltd report of 25 September 2018;

• The EPA Victoria clean up notice issued on 20 August 2019;

• The EPA Minor Works Pollution Abatement Notice issued on 30 August 2019; and

• The EPA Pollution Abatement Notice issued on 30 August 2019.

Direction given pursuant to section 17K(2) of the Dangerous Goods Act 1985

On the basis of the documents listed above, I believe that:

• there is a danger to persons and property arising from dangerous goods at the Premises that are damaged or spilled and/or in a container that is damaged; and

• 24 hour security is required at the Premises due to the danger to persons arising because of the dangerous goods that are damaged or spilled or in containers that are damaged pending completion of rectification works at the Premises.

Accordingly pursuant to section 17K(2) of the DG Act, I hereby direct Danbol to:

• immediately implement 24 hour security at the premises;
• render harmless the dangerous goods or dangerous goods containers at the Premises by safe means on or before 20 August 2020;
• dispose of or remove the spilled dangerous goods at the Premises by safe means on or before 20 August 2020; and
• render harmless anything contaminated by dangerous goods at the Premises by safe means on or before 20 August 2020.

12 The letter is signed by Mr Michael Eather, an inspector appointed under the Act. The letter attaches five documents, which the defendants accept for present purposes were incorporated into the direction. The Leeder Analytical document refers to testing of samples taken from the site and which show the presence, at least at trace levels, of various compounds that fall within the definition of 'dangerous goods'.

13 WorkSafe pleads that, following the service of the letter on 9 October 2019, there was a meeting between the parties at which WorkSafe estimated the clean-up costs would be approximately $15 million. On 17 October 2019, WorkSafe served a notice on the defendants under s 13E of the Act requiring certain information concerning financial and insurance matters, and requesting the provision of a report prepared by EP Risk dated 9 October 2019.

14 WorkSafe alleges that on 4 November 2019, an inspector believed that Danbol had failed to comply with the direction; and was likely to use unsafe means to render harmless, dispose of or remove the dangerous goods, containers or things within the period of time specified in the direction.[19] On that day, an inspector sent a letter to the defendants in the following terms:[20]

...

I am an inspector appointed by WorkSafe under the Dangerous Goods Act 1985 (Vic) ("DG Act") and the Occupational Health and Safety Act 2004 ("OHS Act").

Your client, Danbol, is the owner of 420 Somerville Road Tottenham in Victoria (the "Premises") for the purposes of section 17K(2) of the DG Act.

For the purpose of this letter I rely on the following documents that were provided on 9 October 2019:

• The Certificates of Analysis issued by Leeder Analytical (reports numbered L 190257 and L 190258, dated 13 and 18 September 2019) ("Test Results")

• The AMCOSH Pty Ltd report of 25 September 2018;

• The EPA Victoria clean up notices issued on 20 August 2019;

• The EPA Minor Works Pollution Abatement Notice issued on 30 August 2019; and

• The EPA Pollution Abatement Notice issued on 30 August 2019.

Direction given pursuant to section 17K(2) of the Dangerous Goods Act 1985

Directions were issued to your client under section 17K(2) of the DG Act on 9 October 2019 in relation to the Premises requiring Danbol to:

• immediately implement 24 hour security at the premises;

• render harmless the dangerous goods or dangerous goods containers at the Premises by safe means on or before 20 August 2020;

• dispose of or remove the spilled dangerous goods at the Premises by safe means on or before 20 August 2020; and

• render harmless anything contaminated by dangerous goods at the Premises by safe means on or before 20 August 2020.

Directions were issued to your client under section 13E of the DG Act on 17 October 2019 requiring your client to provide:

• Financial and or insurance records that are adequate for WorkSafe to determine if Danbol has the financial capacity to comply with the directions Michael Eather issued on 9 October 2019.

On 22 October 2019, by email, I confirmed that, in accordance with the directions issued on 9 October 2019 that Danbol is required to implement 24 hour security at the Premises by 28 October 2019.

At a meeting held on 28 October 2019 your client informed me that 24 hour security arrangements for the site had not been finalised.

At the same meeting your client did not disclose financial and or insurance records that were adequate for WorkSafe to determine if Danbol has the financial capacity to comply with the directions issued on 9 October 2019.

I believe that Danbol has failed to comply with the direction to immediately implement 24 hour security at the Premises and is unable or unwilling to demonstrate capacity to use safe means to render harmless, dispose or remove dangerous goods, containers or things within the period of time specified in the notice issued on 9 October 2019.

Notice of action pursuant to section 17K(5)(a) of the DG Act

I hereby notify your client that I am exercising power under section 17K(5)(a) in relation to the Premises to take any action I consider necessary for:

• the destruction, rendering harmless, disposal or removal of the dangerous goods or containers; and/or

• the destruction or rendering harmless of anything contaminated by spilled dangerous goods.

I will seek to recover the costs of the above action pursuant to section 17K(6) of the DG Act.

...

15 That letter is not signed by Mr Eather, who is the author of the direction, but by a different inspector, Mr Nikos Likouresis.

16 WorkSafe alleges that on 4 November, 21 November and 9 December 2019, the defendants wrote to WorkSafe and, amongst other things, requested that WorkSafe not take control of the site, on the basis that Danbol would clean-up the site itself and that it had the resources to meet the costs associated with the clean-up.[21]

17 WorkSafe alleges that it had retained consultants, experts and security who had rendered services that an inspector considered necessary to address the danger posed by the dangerous goods or containers on the site and had incurred costs in respect of that work.[22] It seeks, under s 17K(6) of the Act, the amount it has expended on the clean-up of the site.

18 In the further or alternative to the s 17K(6) claim based on the direction to Danbol, WorkSafe alleges that on 9 October, Delacor Pty Ltd ('Delacor') was in possession or control of the containers and dangerous goods present on the site; that WorkSafe had served a direction under s 17K(2) on Delacor ('the Delacor direction'); and that an inspector believed on reasonable grounds that Delacor had failed to comply with the Delacor direction and was likely to use unsafe means to render harmless, dispose or remove the dangerous goods, containers or things within the period of time specified in that direction. The Delacor direction is said to provide an alternative basis for recovery against the defendants.

19 The defendants admit that asbestos is a dangerous good and that it was present on the site, but otherwise say they do not know, and cannot admit to, the presence of any other dangerous goods on the site.[23]

20 Relevantly, for present purposes, the defendants plead that the direction and the Delacor direction (together, 'the directions') are invalid because they are impermissibly uncertain as they do not identify:

(a) the particular dangerous goods said to be present on the site;

(b) whether those dangerous goods were damaged or spilled or in a container that was damaged;

(c) the danger to any person or property arising from the existence of the dangerous goods; and

(d) the step(s) that had to be taken for each of those dangerous goods to render harmless the dangerous goods or container, or to dispose of or remove the spilled dangerous goods and render harmless anything contaminated by them.

21 The direction is also said to be uncertain because it does not identify Danbol or Baldwin as the owner of the dangerous goods, or the person in possession or control (or last in possession or control) of the dangerous goods or container.

22 In addition to their claim that the directions are invalid for uncertainty, the defendants also plead that the directions are invalid because they do not identify any facts sufficient to induce a reasonable person to believe danger to any person or property of the requisite kind existed.

23 The defendants also plead, as an independent basis, that on the proper construction of s 17K of the Act, the same inspector is required to issue both a direction under s 17K(2) and authorise action under s 17K(5). They allege that, in breach of that requirement, two inspectors were involved, in that one inspector, Mr Eather, issued the directions, and a different inspector, Mr Likouresis, authorised the taking of action under s 17K(5).

24 By counterclaim, the defendants also allege that s 17K(6) of the Act is invalid because it impermissibly impairs the institutional integrity of the Supreme Court or requires the Court to depart from the processes that characterise the exercise of judicial power to a significant degree. This contention is based on the principles propounded by the High Court in Kable v Director of Public Prosecutions (NSW).[24]

25 In its reply, WorkSafe responds to the allegation that the directions are impermissibly uncertain by asserting that:

(a) s 17K(2) of the Act does not require the directions to identify the matters alleged by the defendants; but

(b) if the particular dangerous goods, or the facts supporting the reasonable belief of the inspector, are required to be set out in the directions, the directions complied with this requirement having regard to the documents referred to in the directions, including the Certificates of Analysis issued by Leeder Analytical, the EPA clean-up notice, and the EPA abatement notices.

26 It is convenient at this point to note that the defendants sought particulars of the specific dangerous goods that were present at the site at the relevant time. In response, WorkSafe said that the dangerous goods were identified in the Leeder Analytical report referred to in the directions and also supplied to the defendants a spreadsheet listing various elements and compounds that WorkSafe said were dangerous goods which the Leeder Analysis showed were present at the site. So, for example, the spreadsheet lists various semi volatile organic compounds, volatile organic compounds, metals, perfluoroalkyl substances, and phenoxyacetic acid herbicides which were said to be found in samples taken from the site.

27 As to the allegation that the same inspector must issue both the s 17K(2) notice and authorise the action under s 17K(5), WorkSafe contends that there is no such requirement. However, if there is such a requirement, WorkSafe says it was satisfied because Mr Eather, who issued the directions, also authorised the action to be taken under s 17K(5) on the basis of his reasonable belief that the persons to whom the directions were issued had failed to comply or were likely to use unsafe means to render harmless, dispose of or remove the dangerous goods, container or thing within the period of time specified in the directions.

28 By an amended summons dated 17 December 2021, the defendants seek summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 and, in the alternative, that the ASOC be struck out as failing to disclose a cause of action. On the hearing of the summons, the defendants put their submissions solely on the basis of summary judgment, recognising that if they failed in that endeavour, there was no additional basis on which to strike out the pleading and, of course, if they succeeded, the proceeding would be dismissed.

29 The summons sets out four bases on which the defendants assert they are entitled to the summary dismissal of the proceeding:

(a) the directions are invalid because they are based on the five documents referred to in the directions and those documents do not disclose a reasonable ground for a belief that there was a danger to any person arising from spilled dangerous goods;

(b) the directions are impermissibly uncertain because they do not specify the particular dangerous goods to which the direction relates; whether the goods were damaged or spilled or in a container that was damaged; the danger said to arise from those goods; and the steps needed to be taken to address the danger;

(c) the action under s 17K(5) of the Act is not authorised by the same inspector who issued the directions; and

(d) s 17K(6) is invalid on Kable grounds_._

30 On the hearing of the summons, the defendants did not press the constitutional ground and nothing further need be said about it.

31 The first two grounds were in effect argued together and were directed to the proper construction of s 17K and whether, on that construction, the directions satisfied s 17K(2) of the Act.

32 The starting point for the defendants' submissions is thus the construction of s 17K of the Act.

33 They submit that a direction under s 17K(2) must be in writing, specify the particular dangerous goods, identify the danger that arises from those goods, the steps that must be taken to address the danger, and set out the fact of the inspector's belief and the basis for that belief. They submit that the purpose of a direction is twofold: to have the recipient comply with the direction by using safe means to address the relevant danger; and to constrain the power to take action under s 17K(5) in the event the occupier fails to comply with the direction.

34 The defendants submit that a valid direction under s 17K(2) of the Act is a precondition for the valid exercise of power under s 17K(5) by an inspector to take the action described in subsection (4), namely the destruction, rendering harmless, disposal or removal of the dangerous goods or the destruction or rendering harmless of anything contaminated by them. And, in turn, the ability to recover the costs of the relevant action under s 17K(6) requires that there has been valid compliance with sub-ss 17K(2) and (5). Thus, they submit, that the s 17K(2) direction limits the extent of any liability to reimburse under s 17K(6).

35 The defendants accept that s 17K(2) does not expressly require that a direction contain the matters that they identify. However, they submit that the requirement to set out these matters in a written direction must be implied because of the criminal liability that may attach to non-compliance under s 17K(3); because it best serves the purposes they identify; and because the direction 'becomes the charter of the inspector's powers' under s 17K(5) and therefore the basis of the potential liability of the recipient to either undertake the remedial work or reimburse WorkSafe under s 17K(6). This latter point was said to arise from the fact that the inspector must specify the steps that must be taken and it is these steps (and no other) that the inspector may take under s 17K(5) in the event the occupier fails to comply. In other words, a direction must inform the occupier what is required of it and what might be done at their expense in the event of a failure to perform.

36 The defendants submit that, apart from those cases where there is an immediate danger and in respect of which no direction is required as a precursor to an inspector taking action under s 17K(4), the Act requires detailed notice to the occupier so that an informed response can be given and the powers of the inspector appropriately circumscribed by the terms of the original direction. They point to the fact that, under s 17K(6) of the Act, the occupier (which is broadly defined and might catch persons with a variety of connections to the dangerous goods) will need to know what they are being directed to do and the costs they might be required to meet, in the event they fail to comply and the inspector steps in to take action under s 17K(5), so they can make an informed decision as to how to respond.

37 The defendants accept that the level of detail in which these items need to be identified will depend on the factual context and surrounding circumstances in a particular case. However, they submit, it is never enough for a direction to merely recite the statutory language in s 17K.[25] The defendants submit that having regard to the context and purpose, the section requires more than a recitation of statutory language which would not serve the statutory purpose of identifying what needs to be done and limit the power of the inspector to take action.[26] They say that it is impermissible to go beyond the terms of a direction in order to ascertain its meaning.[27]

38 Applying their construction of s 17K to the directions, the defendants submit that they do no more than parrot the statutory language, and as such, are invalid.

39 In answer, WorkSafe submits the determination of the proceeding depends on disputed questions of fact and law that preclude the making of an order for summary judgment. It argues that the Act is premised on their being a risk to people and property, that occupiers have a responsibility to understand what hazards may be present on their land, and that occupiers are well placed to carry out works and comply with any directions that may be issued. It submits that s 17K and the directions are not to be considered without regard to the surrounding facts and circumstances.

40 There is no dispute between the parties as to the principles that this Court must apply in considering an application for summary judgment. The burden on the defendants is to persuade the Court that the proceeding has no real prospects of success, in the sense that the chance of success is no more than fanciful.[28] The Court must bear in mind the principle that the power to award summary judgment is only to be exercised with caution and, therefore, not unless it is clear that there is no real question to be tried.[29]

41 The fact that the outcome of the proceeding depends on disputed questions of statutory construction does not necessarily mean that summary judgment is not available, however, the need for caution remains. The process of summary judgment is not the same as, and ought not be a substitute for, a trial or, where appropriate, the separate determination of a question in a proceeding. In Babscay Pty Ltd v Pitcher Partners (a firm),[30] Middleton J said:

There is no doubt that a court may on an application for summary judgment decide a point of law even though to arrive at the correct position involves some careful (and even lengthy) consideration. However, as is the position here, where a question of law, which is relatively complex, involves various different applications depending on the facts, and which has not been authoritatively opined upon, it would be unwise to determine that issue summarily.[31]

42 Putting aside whether there are factual issues in dispute, success on the defendants' arguments depends in the first place on the Court being persuaded that it is appropriate to resolve the legal meaning of s 17K on the present application, that the construction proffered by the defendants is correct, and that, on their construction, the directions are clearly bad. In my view, the Court should not embark on that course.

43 The meaning and scope of s 17K are not self-evident, nor so obvious that they do not admit of reasonable argument. Indeed, the defendants recognise that the limitations they seek to read into s 17K(2) are not to be found in the express terms of the section, but arise by implication having regard to purpose and context. That, of course, does not mean that their construction should be rejected, but it does reinforce the point that the construction of this important, but untested, provision is not a relatively simple matter of reading uncontroversial text. For that reason, the exercise should not be undertaken in an application for summary judgment.

44 Given my clear view that the correct construction of the provision in each of its various respects should not be decided on the present application, it is not appropriate for me to venture too far into the competing arguments. I should note, however, that the construction of s 17K(2) advanced by the defendants, at least to the extent that it requires the dangerous goods that are the subject of a direction be identified, is plainly arguable. Indeed, it may ultimately prevail. However, I do not consider that the balance of the defendants' arguments, including that a direction must specify the steps that must be taken and that the power to take action under s 17K(5) is limited to those specified steps, necessarily carry the same force. The power in s 17K(5) is to take the action identified in s 17K(4), which is not expressly tied back to the form of the direction, and the language focuses on that which the inspector considers to be necessary to achieve the stated aim. One competing construction, which may follow from the text of s 17K(4), is that the scope of the permissible action is determined by the inspector's belief as to what is reasonably necessary in the circumstances that exist at the time of the decision to take action, rather than the terms of the original direction. And, the purpose which the defendants seek to ascribe to the section of providing notice to the occupier as to the steps that might be taken to enable it to make an informed choice to do the work itself, is by no means obvious. On one reading, the Act prioritises the removal of the dangerous goods and public protection, rather than the interests of the occupier.

45 For present purposes, the critical point is that the construction of s 17K will need to be undertaken in a wholistic way. It is undesirable to embark on a construction of sub-ss 17K(1) and (2) without regard to how they might interact with the balance of the section in circumstances where there is an obvious link or thread running through each of its subsections. It would be in error at this stage of the proceeding to try and pick out those parts of s 17K where the constructional questions might appear to be less troublesome, such as whether the dangerous goods must be identified, without considering the operation of s 17K as a whole. I am conscious of those authorities that show that disputed legal questions can be resolved on a summary judgment application, however, the caution expressed by Middleton J in Babscay can, and should, be applied here.

46 Moreover, even if the construction of s 17K advanced by the defendants is to be accepted, that would still leave for consideration whether the directions complied with the provision and, if they did not, what legal consequence would follow for the proceeding under s 17K(6). Although the defendants' primary submission is that the meaning of a direction given under s 17K is to be derived from the terms of the direction itself, and without regard to any extraneous or extrinsic matter, it is plainly arguable that a direction must be understood in the context in which it is given. At this point, there is no clear or obvious answer as to what extraneous matters may properly inform the meaning of the directions and what must be ignored. Further, the characterisation of a non-complying direction as 'invalid' carries with it legal questions of some complexity, including the extent to which the principles of construction explained in Project Blue Sky[32] might be relevant.

47 It follows that, even on the construction of s 17K favoured by the defendants, contested issues of fact may intrude on how the directions might reasonably be understood by the recipients and whether they adequately conveyed what the section required. In that respect, I accept Worksafe's submission that, in the correspondence and meetings between the parties that followed the giving of the direction on 9 October 2019, the defendants did not appear to assert that the directions were impermissibly uncertain. Indeed, it appears that they sought to stave off the inspectors taking over the site by asserting that they were in a position to undertake what was required. Further, the extent to which the directions identified dangerous goods said to be present on the site is complicated by the fact that the directions incorporated five documents. Those documents are lengthy and appear from their terms to have been prepared by experts. How this evidence will pan out, and its relevance, is properly a matter for trial.

48 In summary then, I am not persuaded that either the cause of action under s 17K(6) pleaded by WorkSafe, or the potential defences raised by the defendants, are entirely straightforward. The interplay between the subsections of s 17K and how they limit or inform the cause of action is a matter of dispute and that dispute should be resolved in the conventional way, at trial. Further, the extent to which the right to take action and recover the costs of doing so under s 17K(6) is controlled by s 17K(2) is not a matter that is free from doubt. Nor is it a matter that can easily or appropriately be resolved at this point in the proceeding by way of summary judgment. There also remain disputed factual questions that ought be resolved at trial.

49 I can deal briefly with the argument that s 17K requires that the action taken under s 17K(5) be taken by the same inspector who issued the direction under s 17K(2). WorkSafe submits that even if the defendants' construction is correct, as a matter of fact, Mr Eather, who issued the directions, also authorised the action which underpinned the recovery action under s 17K(6). I am satisfied that there is a triable question of fact on this point and that the defendants are not entitled to summary judgment. Further, as I have already stated, I am of the opinion that the construction of s 17K, including on this aspect, should be dealt with at trial. I do not consider it appropriate to isolate this particular issue of statutory construction and deal with it on a summary basis.

50 It may be that one or more of the arguments made by the defendants succeed at trial. However, I am not persuaded that the proceeding has no real prospects of success so as to permit its summary termination.

51 The application for summary judgment must be refused and the amended summons dismissed.

[1] Further background is set out in the reasons of Sloss J in Victorian WorkCover Authority v Baldwin & Ors [2021] VSC 667.

[2] The Code (seventh edition or subsequent editions) as in force from time to time.

[3] Divided into flammable liquids, flammable solids, and substances liable to spontaneous combust.

[6] Ibid s 13 (and inspect vehicles s 13A) and s 16.

[10] Issued by a delegate of WorkSafe under s 17A of the Act.

[15] Amended Statement of Claim ('ASOC'), [5]. See definition of 'occupier' in s 3 of the Act.

[20] Ibid [13]. I note that this letter was sent to the defendants' lawyer and refers to the client as Danbol. A similar letter, in the same terms, was also sent to Baldwin and the director of Delacor Pty Ltd.

[24] (1996) 189 CLR 51; [1996] HCA 24 ('Kable').

[25] Citing Pyneboard Pty Ltd v Trade Practices Commission [1982] FCA 18; (1982) 57 FLR 368; Beckingham v Browne [2021] VSCA 362; Comcare v Lilley (2013) 216 FCR 214; [2013] FCAFC 121; Fermanis Investments Pty Ltd v City of Perth (1977) 43 LGRA 1.

[26] Comcare v Lilley (2013) 216 FCR 214; [2013] FCAFC 121.

[27] Fermanis Investments Pty Ltd v City of Perth (1977) 43 LGRA 1; Re Harris (1960) 7 LGRA 247.

[28] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 40 [35] (Warren CJ and Nettle JA); [2013] VSCA 158.

[30] [2019] FCA 480 ('Babscay').

[31] Ibid [11] citing Nichol v Discovery Africa Ltd [2016] FCAFC 182, [134] (Greenwood, McKerracher and Moshinsky JJ) and Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60, [23] (Finkelstein J).

[32] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1988] HCA 28.